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UNITED STATES v. LEON-LOPEZ

June 21, 1995

UNITED STATES OF AMERICA, against GUILLERMO LEON-LOPEZ, a/k/a "El Negro," JAIRO ALVAREZ-BUITRAGO and IVAN ALVAREZ-BUITRAGO, Defendants.


The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 On October 8, 1992, defendants Guillermo Leon-Lopez ("Lopez"), Jairo Alvarez-Buitrago ("Jairo") and Ivan Alvarez-Buitrago ("Ivan") *fn1" were convicted of conspiracy to possess cocaine, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (A). Currently before the Court is defendants' motion for a (1) new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure; or (2) judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29. For the reasons that follow, defendants' motion is denied.

 BACKGROUND

 On June 13, 1991, Lopez, Ivan and Jairo were charged in a two-count Indictment with conspiracy to possess cocaine and possession of cocaine with intent to distribute it. Trial commenced on March 24, 1992 and ended in a hung jury. *fn2" Subsequently, on September 14, 1992, defendants again proceeded to trial and, on October 8, 1992, all three defendants were convicted of both counts of the Indictment.

 I. Evidence at Trial *fn3"

 At the second trial, the evidence established that, commencing in October 1990, Rene De La Cova ("Agent De La Cova") and Robert Matos ("Agent Matos"), former special agent and special agent of the Drug Enforcement Administration ("DEA") respectively, posed as cocaine smugglers during a DEA investigation into the transportation of cocaine from Panama to New York (the "undercover investigation"). In their undercover capacity, Agents De La Cova and Matos met with Ceferino Villamil ("Villamil"), a cocaine broker residing in Panama. Agent De La Cova and Villamil agreed that Agent De La Cova would transport approximately 400 to 500 kilograms of cocaine from Panama to New York. Tr. at 89. Pursuant to this agreement, in November 1990, undercover DEA agents received approximately 307 kilograms of cocaine in Panama, which they then transported to New York. Id. at 406-09. The next month, DEA agents received an additional 150 kilograms of cocaine, which they delivered to the Panamanian government. Id. at 90, 104, 409.

 In January 1991, Agents De La Cova and Matos met with Fernando Arias ("Arias"), who was designated to oversee the distribution of the cocaine in New York. Id. at 92. The agents gave Arias a cellular telephone, upon which they had concealed an authorized wiretap. Id. at 413. From an intercepted conversation, the agents learned that a portion of the cocaine was designated for an individual identified as "El Negro," whose beeper number was (212) 458-0453. Id. at 109, 417.

 Subsequently, on January 10, 1991, Agent De La Cova, posing as Arias, paged "El Negro" at the above telephone number and arranged to deliver ten kilograms of cocaine to him later that night. Id. at 118-19. At the pre-arranged time, Agents De La Cova and Matos met the defendants to effectuate the drug transaction (the "January 10th transaction"). Id. at 124-25. Lopez identified Jairo and Ivan as his workers and indicated that Jairo would drive the car containing the cocaine and that Ivan would transport Lopez in a different car. Id. at 125-27. Agents De La Cova and Matos then walked with Jairo to their vehicle and allowed him to inspect the cocaine. When Jairo attempted to drive away in the vehicle containing the cocaine, the agents arrested all three defendants. Id. at 129-30. After frisking Lopez and Ivan, the agents discovered that each of the defendants was carrying a beeper. Id. at 357-58. The telephone number that Agent De La Cova had called earlier that evening was typed on Lopez's beeper. Id. at 443. Ivan also was carrying a piece of paper upon which was written Lopez's beeper number and the name "Guillo." Id. at 443-44. When questioned by Agent Matos after his arrest, Ivan indicated that he knew that "someone" was there to do a cocaine deal and that after the cocaine deal they had planned to shop for shirts. Id. at 441. Jairo also stated that he had planned to shop for shirts. Id.

 II. Misconduct by Agent De La Cova4

 During the second trial, defense counsel sought to cross-examine Agent De La Cova concerning two events: (1) allegations made by a female defendant in another case that Agent De La Cova had engaged in sexual relations with her during the course of that investigation; and (2) a trial in the Eastern District of Virginia during which Agent De La Cova was prevented from testifying because he had lied about the death of a confidential informant and the existence of certain audiotapes. After hearing argument from both sides, the Court ruled that defense counsel was precluded from cross-examining Agent De La Cova as to either of these incidents.

 After their convictions, on August 17, 1993, defendants moved for a new trial on the ground that the Court erred in precluding them from cross-examining Agent De La Cova regarding his alleged prior bad acts. By Order dated September 20, 1993, however, the Court denied defendants' motion. Specifically, the Court indicated that:

 
Defense counsel's extensive cross-examination of Special Agent Rene De La Cova provided the jury with ample opportunity to assess the witness's credibility. Moreover, unconfirmed allegations of sexual misconduct and the facts concerning the prior case in Virginia were of "marginal relevance" and were clearly prejudicial.

 See Memorandum Endorsed Order, dated Sept. 20, 1993.

 Subsequently, on January 5, 1994, Agent De La Cova pled guilty in the United States District Court for the Southern District of Florida to stealing $ 700,000 in connection with an unrelated investigation. He currently is serving a twenty-four month sentence of imprisonment.

 III. Misconduct by Agent Matos *fn5"

 By letter dated July 7, 1994, the Government informed the Court in connection with an unrelated case that, in May 1993, Agent Matos had engaged in sexual relations on one or two occasions with a known cocaine trafficker. According to the Government, Agent Matos had also offered to confirm the woman's belief that two of her friends had been arrested and he entered their names in the DEA's computer. Agent Matos then informed the woman that her friends had been arrested. Agent Matos also discussed with the woman the possibility of helping to secure the release of her friend, who was incarcerated in Panama, although there was no evidence that he took any action to effectuate the individual's release. In any event, Agent Matos failed to report to the DEA that he had knowledge of the woman's drug trafficking activities.

 On May 27, 1994, Agent Matos was placed on limited duty. Thereafter, on June 20, 1994, the United States Attorney's Office declined to prosecute Agent Matos and, instead, referred the matter to the OPR for administrative action. On July 18, 1994, the OPR recommended that Agent Matos be restored to full-duty status.

 IV. Current Motion

 On August 15, 1994, Lopez moved for a new trial or judgment of acquittal on the grounds of ineffective assistance of counsel. In addition, all three defendants moved for a new trial or judgment of acquittal on the grounds of newly discovered evidence of agent misconduct.

 Lopez first contends that the Court should grant him a new trial because he received ineffective assistance of counsel during his second trial. Specifically, Lopez contends that his former attorney, Joel Cohen ("Cohen"), informed the Court several times during the course of the trial that his father was dying and that he was incapable of adequately representing Lopez at that time. In addition, Lopez contends that Cohen failed to cross-examine DEA Agent Thomas Harrigan ("Agent Harrigan") about the chain of custody of the cocaine used in the January 10th transaction. Lopez also points to the fact that Cohen refused to inquire into whether seven kilograms of cocaine could fit into the soft-sided briefcase used by the Government during the January 10th transaction.

 Lopez contends further that Cohen rendered ineffective assistance of counsel by representing him despite a conflict of interest. Specifically, Lopez contends that, prior to taking on his case, Cohen previously had represented an individual named Jose Zapata ("Zapata"). Zapata had been charged with violating the narcotics laws stemming from the same investigation as Lopez and, ultimately, had pled guilty to the charges against him. During the course of his case, Zapata was represented by Ivan Fisher ("Fisher"), who rents office space to Cohen and was also represented by Cohen in an unrelated case. According to Lopez, Cohen's prior representation of Zapata and his association with Fisher created a conflict of interest rendering his representation constitutionally defective.

 B. Government Misconduct *fn6"

 Lopez and the Buitragos contend that a new trial is warranted because the Court erred in precluding them from cross-examining Agent De La Cova about his alleged bad acts. Defendants also base their motion on newly discovered evidence, namely, the January 1994 conviction of Agent De La Cova and the placement of Agent Matos on limited duty in May 1994. Finally, defendants assert that a new trial or judgment of acquittal is mandated by the DEA agents' misconduct during the undercover investigation. Specifically, defendants make the following allegations of government misconduct.

 1. Receipt of Jewelry and Money By Confidential Informants

 Defendants first allege that Agents De La Cova and Matos failed to report that Ramiro Restrepo ("Restrepo") and Kresimir Sucic ("Sucic"), two of the intended recipients of the cocaine transported from Panama, gave a quantity of jewelry and cash to a confidential informant (the "First CI") during the course of the undercover investigation. *fn7" On December 13, 1990, Agents De La Cova and Matos, together with the First CI, met with Restrepo and Sucic at the Windows of the World restaurant in New York to discuss a drug transaction. During or after this meeting, Restrepo gave a quantity of jewelry to the First CI.

 Defendants allege that Restrepo gave the First CI $ 90,000 worth of jewelry as partial payment for the cocaine that he expected to receive from the agents. The First CI confirmed that Restrepo had given him a quantity of jewelry in the parking garage after the meeting in the restaurant. The First CI indicated, however, that he told Restrepo that he would be interested in purchasing jewelry from Restrepo in order to sell it at a profit. According to the First CI, he informed Agent De La Cova of his receipt of the jewelry and Agent De La Cova instructed him to keep ...


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